Death row inmate convicted in 1988 argues for new trial

Dennis O'BrienTHE BALTIMORE SUN

PRINCESS ANNE - In a case that has become a rallying point for death penalty opponents, death row inmate Kenneth Collins asked a Somerset County judge for a new trial yesterday, arguing that a key prosecution witness has recanted and that his lawyer didn't adequately represent him.

Collins, 37, was convicted of first-degree murder in the 1986 shooting death of Wayne L. Breeden by a Somerset County jury that deliberated 65 minutes after a five-day trial.

Peter Keith, Collins' lawyer, said yesterday that Andre Thorpe, one of 18 witnesses called by the state, now says that he lied when he testified in 1988 that Collins confessed to him.

"In a personal conversation with me, Mr. Thorpe has indicated to me that he had not testified truthfully," Keith told Somerset County Circuit Judge Daniel Long. The case was moved to the Eastern Shore because of concerns about pretrial publicity in Baltimore County.

Keith subpoenaed Thorpe to testify yesterday, but he did not appear. Long scheduled another hearing for July 10 and said that if Thorpe fails to show, the judge will have sheriff's deputies bring him to court.

"I want to hear from this witness to assess his credibility," Long said.

Assistant State's Attorney Steve Bailey said he doubts Thorpe will change his testimony. "I don't believe that he will come in and recant," he said after the hearing.

Keith also argued yesterday that Collins was denied a fair trial in 1988 because his lawyer, M. Gordon Tayback, failed to give him effective assistance.

Tayback was charged with failing to file tax returns for several years and was sentenced to probation in U.S. District Court last year for failing to file a federal return in 1993. Keith noted that Tayback escaped a jail sentence by arguing that he was operating at a diminished capacity because he was suffering from obsessive compulsive disorder.

"You have a lawyer who was so inattentive he wouldn't even do his own taxes," Keith told Long.

Tayback declined to comment yesterday.

But Bailey noted that after a review of Tayback's performance during a post-conviction appeal in 1992, Long ruled that Tayback effectively defended Collins. And therapists who evaluated Tayback before he was sentenced concluded that he was something of a "workaholic," Bailey said.

"If there is a mental disease that you would want your lawyer to have, Mr. Tayback has it," Bailey said.

After the hearing, Keith said Thorpe recanted his testimony in a taped conversation when they met last year.

Keith said Thorpe also acknowledged in telephone conversations with Dwight Sullivan, a lawyer for the American Civil Liberties Union, and Max Obuszewski, a death penalty opponent and peace activist, that he lied on the stand.

Keith said Thorpe might not have appeared because he is afraid of being charged with perjury.

Collins' sister, Sheena Collins, 33, of Baltimore, and about 10 death penalty opponents attended yesterday's hearing. "From the very beginning, we've believed he was innocent," his sister said.

Capital punishment opponents say the case illustrates problems with the state's death penalty.

"At the very least, this case should throw ambiguity into the mix and bring into question whether we should have a death penalty at all," said Michael Stark, a member of the Campaign to End the Death Penalty.

Collins' supporters point out that he was convicted without blood or fingerprint evidence, eyewitness testimony, a confession or a murder weapon.

According to testimony, Breeden withdrew $80 from an automated teller machine and was followed by two people to a house that he owned in the 8500 block of Arry Place in Parkville, where he was robbed, pistol-whipped and shot to death.

An off-duty police officer who lived nearby spotted the taillights of the getaway car, which was traced to Tony Michie.

Michie was charged with first-degree murder. But after his first trial ended in a hung jury, he told police that Collins killed Breeden and agreed to testify against Collins in exchange for a 40-year sentence for second-degree murder.

While Michie was in jail, he told Thorpe to go to Collins to let him know that Michie wasn't going to "take the fall" for him, according to testimony. Thorpe, who is Michie's cousin, testified at Collins' trial that he went to the defendant's house, where Collins confessed to the killing.